Complaint Committee in Sexual Harassment Cases Must be Independent and Fair

Recently, Hon’ble Justice Prathiba M. Singh of Delhi High Court delivered an important judgement concerning sexual harassment at workplace.

Background:

Mr Kamlesh Kumar Pandey, a Secretary Level Officer, was appointed as the Chairman for Rehabilitation Council of India (RCI) and had a substantive post as a Chief Commissioner for Persons with Disabilities (Ex-Chairman). 

The petitioner, Rashi, who was a contractual employee, made allegations of sexual harassment against Mr Pandey.

Petitioner contended that her allegations against the Ex-Chairman were not being considered in accordance with the law. Her services were terminated from 8th October 2018. 

Since no action was taken against her complaint, a writ petition of 2018 was filed. An order passed on 6th December 2019 asked the respondents (Union of India and Another) to look into the complaint and take action under the law, by constituting an Internal Complaints Committee (ICC).

The complaint was therefore referred to the ICC. However, due to it having members in relation to Pandey, the ICC was reconstituted. Rashi had a grievance with the constitution of the committee itself. 

It was submitted that the constitution of the ICC was to be done in accordance with the memorandum dated 26th September 2008 which was issued by the Cabinet Secretariat, which was continuously extended till 17th September 2014. 

Since the complaint was filed against a secretary level officer, the constitution of ICC was to be according to the Cabinet Secretariat. 

Proceedings before Court

The UOI had also filed a review petition for the order from December 6th, stating that the constitution of the committee for a Secretary level Officer according to the 2008 memorandum was prior to the enactment of  the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).  Thus, the constitution would be according to that act and not necessarily by the Cabinet Secretariat. 

According to the submission in September 2020, the commission formed by the government included 3 ladies as Additional Secretary, Under Secretary, a non-official member and one man as Deputy Secretary. 

The question had thus risen:

Was this constitution in accordance with the law?

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Submissions

On behalf of the government, it was submitted that according to Sec.4 (1) of the POSH Act, ICC is to be constituted in the respective ministry itself. There are a total three women in the Committee and thus, all the requirements of Section 4 were met. It was also noted that it was not necessary that the chairperson be of a senior rank than the accused, it was enough that it be a Woman in a senior rank. 

On behalf of the petitioner, it was submitted that the order was passed with the consent of the parties on 6th December and thus consent cannot be withdrawn in this manner. There was no error of law in the direction of the court, which had simply asked for reconstitution. 

The respondent further also stated that since the accused was working with the Department of Empowerment of Persons with Disabilities, even which can be considered as the employer under which the committee can be formed according to law. The accused was anyway not working there anymore. The petitioner refused as the accused had already applied for re-appointment but was not considered due to the sexual harassment complaint. 

Analysis:

The court looked at the impugned order from December 6th and also the memorandum from 2008. It was noted that the memorandum was an effect of the Vishakha Judgment.  

Character of the ICC is clear from a reading of the judgments of the Supreme Court. Some points taken were:

1. ICC was to be impartial. It must not have knowledge, conflict or interest in the parties. 

2. Neutrality, Objectivity and non-bias were to be observed.

3. Members were to have blemish-less credentials.

4. There must be independent members (who were to be external) to assist the ICC in a fair and impartial manner. 

5. ICC must not have any undue influence of any kind

6. Clear procedure, natural justice principles and Vishakha Guidelines were to be followed. 

It was observed by the court that a perusal of the complaint shows that the allegations are not merely against the Ex-Chairman but also against other staff members who are alleged to have been complicit with the main person against whom the allegations are raised. 

Moreover, the Chairperson of the ICC now appointed appears to be the successor in the same post which the Ex-Chairman was holding. Two other members are from the Department where the Ex-Chairman had been a Secretary level officer. Under such circumstances, it was only fair if the ICC was constituted with members who did not belong to the same Department. 

The Court directed that a Committee be constituted by the Cabinet Secretariat, consisting of such persons who are independent and unbiased, to enquire into the allegations made by the Petitioner/Complainant. The Committee shall be constituted within four weeks.

Story by Sai Kulkarni-Intern

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